Townsend v. Legere

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-southern judicial district

No. 95-601

JEAN M. TOWNSEND

v.

EMILE J. LEGERE d/b/a BEECHBROOK APARTMENTS

January 28, 1997

Nixon, Raiche, Manning & Branch, P.A., of Manchester (Leslie C.
Nixon and David L. Nixon on the brief, and Ms. Nixon orally),
for the plaintiff.

Scotch & Zalinsky, of Manchester (Barry M. Scotch and
Henry E. Forcier on the brief, and Mr. Scotch orally), for the
defendant.

HORTON, J. Following a trial in Superior Court (Arnold, J.), the jury
attributed forty percent of the fault to the plaintiff, Jean M. Townsend, for
her slip-and-fall accident at an apartment complex operated by the defendant,
Emile J. Legere d/b/a Beechbrook Apartments. On appeal, the plaintiff argues
that the superior court erred in instructing the jury on comparative negligence
because there was insufficient evidence to warrant the instruction. We agree and
therefore set aside the portion of the special verdict finding comparative
negligence.

On February 14, 1993, the plaintiff, a sixty-eight-year-old resident of the
defendant's apartment complex, slipped and fell on a sidewalk at the complex
during a morning walk with her dog. As a result of the accident, the plaintiff
suffered a fractured ankle and subsequently required hospitalization. Roughly
one year later, the plaintiff commenced this negligence action, alleging that
the defendant failed to maintain the sidewalk in a safe condition and to guard
against the dangers associated with snow and ice. In a pretrial statement,
seeSuper. Ct. R. 62, the defendant asserted that the accident
resulted from the plaintiff's inability to control her dog and from her failure
to exercise due care.

At trial, the plaintiff presented evidence in support of her theory of
negligence, including testimony from an expert witness that the defendant's
inspection, maintenance, and treatment of the sidewalk fell below the acceptable
standards for dealing with snow and ice. In an effort to prove the allegations
of comparative fault at trial, the defendant relied on the following: (1) the
plaintiff's testimony that a light dusting of snow covered and obscured the
sidewalk on the morning of her accident; (2) the cross-examination of the
plaintiff, which revealed that she weighed approximately 110 pounds and that her
dog weighed roughly seventy-five pounds on the day of the accident; (3)
testimony from the defendant's on-site employee that the plaintiff's dog, on
other occasions, had tugged and pulled at the leash during walks with the
plaintiff; and (4) a statement from the plaintiff's expert witness that
slip-and-fall accidents on sidewalks can result from factors attributable to the
pedestrian, rather than the sidewalk.

Over the plaintiff's objection, the trial court instructed the jury on the
issue of comparative negligence. In addition, the trial court directed the jury
to complete a special verdict form, which required it to determine sequentially:
(1) whether the defendant was legally at fault to any degree; (2) whether the
plaintiff was legally at fault to any degree; (3) the percentage of fault
attributable to each party; and (4) the full amount of the plaintiff's damages
without regard to any findings concerning comparative fault. In its verdict, the
jury determined that the plaintiff was forty percent at fault, that the
defendant was sixty percent at fault, and that the plaintiff's damages amounted
to $75,000. This appeal followed.

The sole issue on appeal is whether the evidence adduced at trial was
sufficient to support a jury instruction on comparative negligence. Under our
comparative fault statute, "[t]he burden of proof as to the existence or amount
of fault attributable to a party shall rest upon the party making such
allegation." RSA 507:7-d (Supp. 1996). Although "the evidence and all reasonable
inferences must be considered most favorably to the defendant" in determining
the propriety of a comparative negligence instruction, Brown v. Montgomery
Ward Co., 109 N.H. 377, 380, 254 A.2d 840, 842 (1969) (decided under
contributory negligence), some tangible evidence of the plaintiff's comparative
fault must be introduced before the question can be submitted to the jury.
SeeBrann v. Exeter Clinic, 127 N.H. 155, 158-59, 498 A.2d 334,
336-37 (1985); Roberts v. Lisbon, 84 N.H. 266, 270, 149 A. 508, 510
(1930) (decided under contributory negligence). Accordingly, "if reasonable
[persons] on the evidence in the case could only reach a conclusion on a
particular issue by conjecture, chance, or doubtful and unsatisfactory
speculation it is the duty of the trial court to withdraw the issue from the
consideration of the jury." Ackerman v. March, 116 N.H. 64, 66, 352 A.2d
717, 719 (1976); seeBrann, 127 N.H. at 159, 498 A.2d at 337.
Guided by these principles, we analyze whether the facts urged by the defendant
constitute evidence of the plaintiff's comparative negligence.

Pointing to the plaintiff's testimony that a light dusting of snow obscured
the sidewalk, the defendant argues that the plaintiff had a duty to use
reasonable care while stepping in areas of the sidewalk that were not visible as
a result of the snow. The defendant further contends that the jury could infer
that the plaintiff "was not walking as carefully as she should have been under
the circumstances." Although we agree that the plaintiff had a duty to exercise
due care, the fatal flaw in the defendant's argument is the absence of evidence
indicating that the plaintiff breached that duty by, for example, "not
walking as carefully as she should have been under the circumstances."
SeeWright v. Dunn, 134 N.H. 669, 672, 596 A.2d 729, 731
(1991) (negligence requires proof of both duty and breach of that duty). On this
point, we reject the defendant's suggestion that the jury's prerogative to
disbelieve the plaintiff's testimony regarding her exercise of reasonable care
could provide the defendant with evidence of the plaintiff's failure to exercise
such care. "Disbelief in testimony concerning particular facts does not convert
that testimony into affirmative proof of contrary facts." Bissonnette v.
Cormier, 100 N.H. 197, 199, 122 A.2d 257, 258 (1956) (quotation omitted).

The defendant also argues that evidence concerning the size and behavior of
the plaintiff's dog was sufficient to warrant the jury instruction on
comparative fault. Without some evidence linking the size of the dog to the
plaintiff's accident, however, we find nothing in the mere weight differential
to permit the instruction. The defendant further contends that testimony from
its on-site employee regarding the dog's behavior on other occasions supplied an
adequate basis for connecting the dog to the plaintiff's accident. We disagree.
During a bench conference concerning the plaintiff's objection to that
testimony, the defendant's attorney specifically disclaimed any representation
that the dog's unruliness was "constant or invariable." On direct examination,
the employee, acknowledging that he did not observe the plaintiff's accident,
merely testified that the dog was difficult to control "from time to time." The
employee further explained that he only noticed these control problems when the
dog encountered people or other animals. On cross-examination, the employee
stated that he only knew of two or three occasions in which the dog was unruly
and conceded that the dog never caused the plaintiff to fall or otherwise lose
her balance. Even considering this testimony most favorably to the defendant, we
hold that it was insufficient to support the jury instruction because it could
not "reasonably and properly lead the jury . . . to conclude that the allegation
of negligence [was] sustained." Brann, 127 N.H. at 158, 498 A.2d at 336
(quotation omitted); cf. Lapierre v. Sawyer, 131 N.H. 609, 611,
557 A.2d 640, 641-42 (1989) (evidence of two or three previous instances of
defendant's unsportsmanlike manner not probative of allegation that defendant's
unsportsmanlike behavior caused plaintiff's injury).

Finally, the defendant claims that the plaintiff's expert witness supplied
evidence of the plaintiff's negligence. We find this argument unconvincing
because the expert merely acknowledged, in response to questions concerning
potential causes of sidewalk falls in general, that an accident could result
from a failure attributable to the pedestrian. This unremarkable "concession"
regarding abstract possibilities could not provide the basis for a ruling
against the plaintiff on the issue of comparative fault. SeeManor v.
Gagnon, 92 N.H. 435, 437-38, 32 A.2d 688, 691 (1943) (decided under
contributory negligence).

After considering the facts urged by the defendant both individually and
collectively, we adhere to well-settled law in holding that the jury should not
have been instructed on the issue of comparative negligence: "If the plaintiff
was negligent, the defendant was bound to prove it. In the absence of evidence,
the mere possibility, which exists in every case, that the plaintiff may have
been guilty of negligence, cannot be made the basis of a ruling against [her]."
Demers v. Becker, 91 N.H. 519, 520-21, 23 A.2d 375, 376 (1941) (decided
under contributory negligence).

Because the special verdict form indicates that the jury's determination
concerning the plaintiff's damages was independent of the findings regarding
comparative fault, we conclude that the plaintiff is entitled to recover damages
in the amount of $75,000. We remand to the superior court for entry of an
appropriate judgment.